N10386

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

 CR NO. 1324 OF 2020

THE STATE

V

PATRICK SUMA

Wewak: Thoke, AJ
2023: 8th,9th, & 13th April & 12th June   

CRIMINAL LAW-Not guilty plea-Trial- Murder-Criminal Code S.300 (1) (a) of CC-Identification Evidence-relevant matters for consideration.

CRIMINAL LAW- No issue in identification – Identification by Recognition-credible and clear identification of the accused- Quality Evidences-Clear Identification by Recognition- There is no issue on the rule in John Beng v The State, as there was sufficient light and the state witnesses clearly witnessed what happened- There is no other defence witness to   corroborate the accused’s version of evidence.

CRIMINAL LAW- Assessment of Evidence- Medical Evidence shows evidence of gunshot causing death- No presence of any other police men with high powered gun- Application of common sense and logic.

Facts:
Between 6pm and 8pm on the 7th of June 2020 at Turubu new Oil Palm Plantation Township, the accused armed with a gun was alleged to have fired some gun shots that caused the death of one Alois Bina.

Held:

1.	Clear and Credible evidence on Identification. The accused is a familiar person to the witness(es), a regular customer to the deceased’s house-front canteen, and a known person to all state witness(es), easily identified and recognized.

2.	The accused was the only person present at the scene of the crime, during the time of shooting and the quality of light was conveniently effective to clearly recognize him at 7pm- 8pm, the time in which the deceased’s’ was shot.

3.	The accused was in possession of a rifle compatible to cause the nature of injury that led to the death of the deceased. Medical evidence corroborates this evidence indisputably.

4.	The accused fails to substantiate his evidence pertaining to the weapon used. Common sense and logic applied takes precedence over this situation. Mere civilians are not expected to give a detailed description of the exact type of riffle or weapon that was in the accused’s possession but the general description provided by state witnesses essentially corroborates their evidence. 

5.	Accordingly, the accused is found guilty as charged.

Cases Cited

The State v. Cosmos Kutau Kitawal (2002) N2245 
The State v. Marety Ame Gaidi (2002) N2256
The State v. John Beng [1977] PNGLR 115
The State v. Tom Morris [1981] PNGLR 493

Legislations Cited

Constitution
Criminal Code Act 1974
Criminal Practice Rules 1987

Counsel

A. Kaipu, for the State 
J. Javapro, for the Accused

JUDGEMENT ON VERDICT

6th June, 2023

1.    THOKE AJ: An indictment was presented on the 10th day of November 2022 charging the Accused for murder under section 300 (1 (a) of the Criminal Code. The charge on the indictment is quoted as follows:

“PATRICK SUMA of SALEMANA VILLAGE, FINSCHAFFEN, MOROBE PROVINCE stands charged that he, on the 7th day of June 2020 at New Oil Plantation Farm Township, Turubu, East Sepik Province, Papua New Guinea, murdered one ALOIS BINA”.
	
2. The Accused pleaded ‘not guilty”. 

THE CHARGE

3. I quote Section 300(1)(a) of the Criminal Code Act:

300. Murder

(1) Subject to the succeeding provisions of this Code, a person who kills another   person under any of the  
following circumstances is guilty of murder: -
(a)	if the offender intended to do grievous bodily harm to the person killed or to some other person;
Penalty: Subject to Section 19, imprisonment for life

4.   The Prosecution has the onus of proving beyond reasonable doubt the three elements of the offence which are:

(i)	That the accused killed the deceased;
(ii)	That the killing was unlawful; and 
(iii)	That there was an intention to do grievous bodily harm to the person killed or to some other person.

THE PROSECUTION EVIDENCE

5.    The Prosecution called three witnesses, namely Kenneth Bina, Ronald Bina and Hazel Bina. The State also tendered seven sets of documents into exhibit with the consent of the Defence Counsel, which include the accused’s record of interview dated 18th August 2020-original in pidgin (exhibit P1), ROI-English Translation (exhibit P2) , statement of policeman Sgt. Sacriacus Simbun dated 19th August 2020 (exhibit P3), Autopsy Report by Dr. Moses Manwau dated 24th June 2020 (exhibit P4), eight (8) photographs taken during autopsy (exhibits P5-P12), sketch map by Ronald Bina (exhibit P13) and statement by policeman SC Jackson Warien (exhibit P14).

6.   The State witnesses gave their sworn evidences in Pidgin. However, I translate them into English and simplify them for ease of understanding, and reference.

7.     The First State Witness, Kenneth Bina, gave sworn evidence that:

(i)	On the 7th June 2020 at around 4pm-5pm, he went to Ronald Bina’s house and stayed with Alois Bina, the deceased,  and Junior Waluwiju fixing a vehicle.

(ii)	As he was inside Ronald Bina’s property, there was a commotion or fight going on outside, Alois Bina, Junior Walujiwi and himself, went outside to see what was happening. 

(iii)	He could hear the fight was extending towards Ronald Bina’s property.

(iv)	He went outside and saw two policemen, each of them armed with a gun, one who he recolonized as the accused, who approached him and assaulted him. The accused assaulted him four (4) times. He then got up and ran towards a banana tree and laid there feeling dizzy from the attack.

(v)	The lighting in the area was good because there was one large florescent tube located at the front, and another at the back.

(vi)	He knew the accused from his occasional smoke and betel nut sessions with him

                       Cross Examination:
i.	There was a volley ball tournament going on outside the property, while he was busy fixing the vehicle.

ii.	 He was not drunk while busy fixing the vehicle.

iii.	He could not tell or identify the type of the gun the accused was armed with.

               Re Examination:

i.	The gun was long and black.

ii.	There was one policeman and the tournament was inside the company compound. 

8.    The Second State witness, Ronald Bina, the elder brother of the deceased, and the owner of the property in which occasioned the death of the deceased. He gave sworn evidence that:

(i)	He was the mechanic working with the Turubu Oil Palm Plantation and resides there.

(ii)	At 3pm-4pm, he was working with others on the vehicle but upon experiencing a backache he went to rest until he was awakened at 6:30pm-7pm by two gun shots, to which he came out of his house simultaneously with his wife to see what was happening.

(iii)	He saw the accused in civilian clothing assaulting his elder brother Alois Bina.

(iv)	He heard accused swearing at the deceased in the words as read “you eat your mother’s vagina, I will kill.” 

(v)	He then ordered the  deceased, Alois Bina, to go to the back of his house where his kitchen was located.

(vi)	He also saw his other brother,  Kenneth Bina laying underneath the banana trees.

(vii)	As he was standing with his wife, the accused armed with a gun followed his brother, the deceased to the back of his house,  and not long after 5 minutes, he heard the third gun shot, around the same time he heard his brother yelling out saying “Yakaiye mama, police shot me”.

(viii)	He then saw the accused walking alone, towards him, from the back area of his house.

(ix)	The accused then asked for the owner of the house, inferring that the owner had a problem with the company, to which he replied that he was the owner of the house.

(x)	He saw the gun as in the shade of black, and one meter long. 

(xi)	He said he saw the accused to be drunk and intoxicated, as he entered his premises.

(xii)	He also reiterated that he had big fluorescent tube lights that normally provide good lighting in the front and back area of his house (where his kitchen was).

(xiii)	He said he knew the accused very well, and that the accused would usually come to his canteen and they would share betel nuts and food together, occasionally. 

(xiv)	He added that he had known the accused since the year 2020, although he could hardly recall how long he knew him.

(xv)	He said he knew the accused as a policeman who was responsible in taking care of the company properties. 

                             Cross Examination: 

i.	He could only identify the gun as 1 meter long and could not give further specifics details.

ii.	When asked about the volleyball tournament, he affirmed that that there was a volley ball tournament within the area, whereby many people turned up but that there weren’t people within his premises.

iii.	When asked how many gun shots were fired, he said there were two gun shots first, and one gun shot fired later. 

iv.	When asked whether it was another policeman firing the third gun shot, he said, he was about to walk to the back when he heard the third gun shot, and immediately after, met the accused walking out from the back.

v.	When this Court asked him how many policemen came into his premises, he said two policemen. 

Re examination

i.	He illustrated the distance between the volleyball tournament ground and his house as the distance between the Wewak National Court House and the Papindo shop, along Dagua Road. 

9.   The Third State Witness, Hazel Bina, who is the daughter of the deceased’s brother, gave sworn evidence that:

(i)	At that time, she said she was cooking in the kitchen and heard a fight or commotion going on, at around 7pm- 8pm in the evening.

(ii)	She left the kitchen to go outside to see the fight and heard the first two gun shots.

(iii)	She then saw the accused hitting the deceased, causing the deceased to fall. 

(iv)	Witnessing what was happening to the deceased before her eyes, she began crying, seeing his younger father getting beaten by the accused, to which the accused even cursed at her, “you eat your mother’s vagina”.

(v)	She then saw the deceased walking towards the kitchen, at the back of the house, while the accused followed behind.

(vi)	She also decided to follow the accused, some meters behind, and stood between two young betel nut trees. 

(vii)	She could see the accused cocking his gun and shooting the deceased, upon which the deceased slowly walked himself away, some distance away from the accused, and eventually died under a coconut tree.

(viii)	She added, she was in tears crying and ran to tell Ronald Bina, her father, when she discovered that he was already in the company of the accused.

(ix)	She further said that she heard three gunshots. She said she heard two gun shots first, and after about 10 minutes she heard the third gun shot.

(x)	She confidently identified the accused in the accused’s dock.

Cross Examination

i.	When asked about the tournament, she said that there was a tournament but it was some distance away.

ii.	She said there were many people present at the tournament but the fighting took place near the main road when police came to disperse them. 

iii.	When asked on nature of gun the accused was armed with, she described it as a long black gun, but could not provide a description the type of gun or the pellets or bullets that were used.

iv.	 She reaffirmed her stories with confidence that there were two shots fired first on her way out of the kitchen, and said the third one was after ten minutes.

v.	When further asked whether she was mistaking the identity of the accused, she answered confidently that it was not a mistaken identity but saw clearly the accused.

vi.	When asked whether she knew the other policeman, alleged to be at the scene as well, she said she did know the other policeman.

Re Examination

i.	She said the other policeman was standing at the canteen, and did not come into the yard while the accused came into the yard and further followed the deceased to the back, where the kitchen was.

ii.	Upon this Court’s enquiry of whether the policeman was in civilian clothing, and whether the tournament occurred during the day, she reiterated that the two policemen were in civilian clothes, and the tournament was held during the day.

PROSECUTION’S SUBMISSION

10. The Counsel for the State submitted that:

(i)	The evidences of all three state witnesses were analogous and credible and they all gave their evidence with ease and confidence.

(ii)	Each of the State’s three witnesses identified the accused, Patrick Suma, as the only person who shot the deceased, Alois Bina with his third shot.

(iii)	Although there are slight inconsistences in the evidences, the application of common sense and logic plays a significant role here.

(iv)	The accused was drunk, armed and in civilian clothing.

(v)	The deceased was never in struggle with the accused over the gun.

(vi)	The accused’s version of evidences was fabricated and untruthful.

DEFENCE ‘S EVIDENCE

11.    The Defence called only one witness, who is the accused himself, Mr. Patrick Suma. 

12.     He gave the evidence that:

i.	He was at the camp on the 7th June 2020 between 7pm-8pm and took a bag belonging to one of the police officers at the mini post office and was waiting for pick up to get back.
ii.	He said he saw the state witnesses drinking and playing dart board at Robin Bina’s store, that has no fence.
iii.	A fight ensued near the road, so him and his other fellow policeman went to stop it. 
iv.	He said he fired two shots, while in the company of his fellow policeman to disperse the crowd.
v.	He added that the deceased who was there tried to grab his gun, to which he was in a struggle with him over the gun.
vi.	After much struggle, the deceased left and then went back to the house.
vii.	He further stated he followed the deceased but upon advice from the security officer that the deceased was not a company employee, he returned and talked to Ronald Bina and his wife and went back the company area. 
viii.	There were three to four other policemen around the area, when the deceased went to the back of the house.
ix.	He was armed with a gun identified as K1A1-Semi automatic, whereby he could only make shots of 5.56 ammunitions at a range of 300 meters.
x.	He denied shooting the accused.
xi.	He further emphasized that the gun he had that time could only fire bullets and not pallets, and that if his gun had made the shot that led to death of the deceased, then there would have been entry and exit wounds on the left bicep of the deceased’s arm. 

THE DEFENCE SUBMISSION

13.     The defence submitted that the evidences of the three state witnesses are contradicting, especially that of Hazel Bina and Ronald Bina.

14.    The Defence submitted that Hazel Bina was in the kitchen and heard the third gun shoot but did not see who was making the shot.

15.    The Defence then went on to submit that the Hazel Bina was inside the kitchen and did not go elsewhere. 

16.    The defence repeated state that Ronal Bina did not see who actually fired the gun that shot the deceased. 

17.    Defence further submitted that the medical evidence proved the pallet shooting the deceased and not bullet shooting the deceased, therefore the accused’s evidence that the gun in his possession only fires bullets corroborates this. 

18.    The Defence further submitted that there should have been a ballistics expert report in this case, but in this case that there is absence of ballistics expert report.

19.   Thus, the defence submitted that the shooting that led to the death of the deceased was not from his gun and that he is not liable. 

ISSUES FOR THIS COURT’S DETERMINATION

20.     I agree with all the issues raised by both the Defence and State Counsels in their respective submission as I see the issues raised from both parties are relatively same in the context.  The State raised the issues by way of separating the agreed facts and disputed facts whereas the defense analyzed the issues in simplified questions. Following are the issues as analyzed by both parties.

                  The undisputed facts as analysed by the state:

a)	The fight started out on the main road. The deceased with Kenneth Bina and Junior Malujiwi went out to see the commotion and fighting outside.

b)	The accused was at the scene of the fight armed with other policeman.

c)	The deceased with Kenneth Bina and Junior Malujiwi later ran away.

d)	The deceased ran to the back of Ronald’s house.

e)	The accused followed him in.

f)	Two initial gunshots were fired by the accused outside.

g)	There was good lighting in the front and back of the house.

h)	The accused had been to Ronald’s canteen and betel nut market prior to the killing.

The disputed facts as analysed by the State:

a)	The fight had already come near the perimeters of  Roland Bina’s house when deceased with Kenneth Bina and Malujiwi Juinior went out.

b)	About 5-6 meter from the house, the accused and another policeman approached them. The accused assaulted Kenneth Bina first.

c)	The accused then assaulted the deceased near the two trucks parked inside the property used for fixing vehicle.

d)	Ronald Bina stopped the accused from further assaulting the deceased and told the deceased to go to the back of his house.

e)	The accused came into the property with three to four other policemen and went to the back-kitchen area.

f)	The neighbours saw him at kitchen area with three to four other policemen.

g)	The accused shot the deceased.

h)	Three shots were fired that night.

               The issues as analysed and simplified by the Defence

i.	Identification.

ii.	Whether the accused was the one who shot the deceased?

iii.	Whether the weapon that caused the injuries which led to the death of the deceased is consistent with the weapon which the accused was in possession of.

iv.	Who to believe?

21.    I agree with the issues as analysed by the defence as most simplified and clear. I only rearrange and reconstruct them for proper evaluation of my decision as follows. 

(i)	Which version of the evidence is reliable and credible?

(ii)	Whether the evidences identifying accused are of good quality?

(iii)	Whether logic and common sense are applicable in this circumstance, if so, which party is served favorably by logic and common sense? Accused or deceased?

(iv)	Whether ballistic evidence(s) were required and if so, does it cast doubt on the standard of proof?
(v)	Who killed the deceased?

WHICH VERSION OF THE EVIDENCE IS RELIABLE AND CREDIBLE?

22.    The state referred me to the case authority of John Beng v. the State and submitted that its version of evidence from its three witnesses fall within the ambit of the principles enunciated in that case. The principle in this case law has been applied in many cases in this jurisdiction. His Honor, Justice Kandakasi (as he then was) has expounded the principle in the case of State v. Marety Ame Gaidi (2002) N2256 as follows:

1.	It has been long recognized that, there are dangers inherent in eye-witness identification evidence.

2.	A trial; judge should warn the jury in the case of a jury trial system or himself as in our case, of the special need for caution before convicting in reliance on the correctness of the identification because for example;
(a)	A convincing witness may be mistaken; or
(b)	A number of witnesses could be mistaken;

3.	Provided such a warning is given, no particular form of words need be used;

4.	There should be specific direction to closely examine the circumstances in which the identification was made; 

5.	Identification by recognition may be reliable but one needs to be cautious because there can be mistakes in trying to identify close relatives and friends.

6.	All these go to the quality of evidence – if the quality of evidence is good the identification may be reliable. If, however, the quality of evidence is bad, the identification will be bad;

7.	The quality of the evidence nay be poor if there is a fleeting glance or longer observation made in poor conditions and

8.	There should be an acquittal if the quality of the evidence is bad.”

  
23. His Honor Justice Kandakasi’s (as he then was) 4th term of eight (8) principles in the State v. Marety Ame Gaidi (supra) is a crucial element pertaining to the good quality of evidence.

24.   In this case, the first State witness Kenneth Bina said he was with the deceased, his brother, Alois Bina and Junior Malujiwi, when they heard a commotion going on, and the sound of two gun shots just outside their home, causing them to go out, whereby upon coming out, they saw and recognized the accused and other policeman, both armed, approaching them, and that was when he was assaulted four times. 

25. The Second State witness Ronald Bina said he experienced a severe backache and went to sleep at 3pm-4pm but was awakened by gun shots at 6:30pm to 7pm, whereby he and his wife walked out of the house and witnessed two armed policemen coming towards their house. He identified the accused as the one assaulting his brother, the deceased. He then told the deceased to go to the back of his house where the kitchen area was, whereby he noticed that the accused was following him behind. Just a while later he heard the third gun shot being fired. He exclusively mentioned that the accused was the only policemen following the deceased into the kitchen area behind his house. He did not mention anything pertaining to the company of the second police men. This evidence corresponds   well with the evidence of third State witness, Hazel Bina, whereby she saw the accused assaulting the deceased and followed him to the back of the kitchen area, while the second policeman was standing at the canteen in front of the house.

26.   The third state witness, Hazel Bina, further said that she followed the accused, (accused) while he was following the deceased. Since the deceased is her father’s brother and known to be her ‘small’ father [ in a Melanesian society], she was curious as to know what was happening after witnessing the assault done on him by the same man, the accused, and why he was then following him to the back of the house. It is logical to accept that she was concerned of her ‘small’ father and wanted to know what was happening at that time, since the accused followed him with rage and anger. The accused himself stated in his evidence that the deceased attempted to get his gun and they were in scuffle over the gun, whereby he was furious and followed him to the back of his house where he just knocked him off using his gun butt. This part of the evidence is not substantiated as opposed to the first and second state witnesses evidence. They both heard a gun shot being fired a while before he came and confronted Ronald Bina on his alleged problem with the company. I am satisfied with the evidence of the third state witness, and eye witness, Hazel Bina’s evidence, whereby she followed the accused some distance behind, and witnessed the accused pulling the trigger aiming his ‘small’ father, causing his death. 

27.   The Defence’s submission questioning the credibility of evidence by the state witnesses and asserting that they were contradicting, however does not outweigh the entirety of the evidence establishing the identification and the fire of the gunshot which caused the death of the deceased.  Further, the Defence’s submission that the third State witness, Hazel Bina, was inside the kitchen and had not gone out or seen the accused assaulting and shooting the deceased but only heard the gun shots, is technically incorrect, given her evidence that she came out of the kitchen before the accused assaulted the deceased. During examination in chief, she clearly said that she left the kitchen and went out to see who was firing the gun shots and recognized the accused assaulting her ‘small’ father (deceased) which caused her to cry, even more, the accused cursed at her saying with profane words. Nonetheless, she gave evidence, confidently, that she followed the accused, some meters behind and saw the accused pulling down his gun and shooting the deceased causing her to sought for Ronald Bina, however, as she approached him (Ronald), he was already in the company of the accused.

28.   During cross examination, the third state witness, confidently identified the accused in the dock. She described the gun that the accused was purportedly in possession as long and black. This is reaffirmed by both first and second state witnesses whereby the first sate witness asserted it was long and black and second state witness saying it was 1 meter long. She further said the accused was not in police uniform, reaffirmed by both first and second state witnesses. I therefore agree with the state submission that the evidences provided by all state witnesses are truthful.

29.    Further, the accused assertion that there were three to four other policemen within the premises who were also armed, requires further corroboration to substantiate his evidence. It is also important to note that none of the policemen involved provided any evidence(s) as to clarify the incident on this part of the day. In the absence of such relevant evidence, the evidences of the Defence is not reliable nor credible to render liberty from criminal culpability. 

Whether Evidence identifying accused was of good quality?

30.      The Identification of the accused is not a controversial issue in this case.  I am content that there was sufficient light to recognize and identify the accused.  I am also satisfied that the fluorescent tubes were compatible to provide light to both the front and back side of the premises. Taking into account the presence of a canteen, area for vehicle fixing, and betal nut market, the premises required light, those fluorescent tubes were for that purpose. This evidence is further supported by the fact that the accused followed the deceased into the property, with clear navigation provided by the bright lights.  Therefore, I am content that the identification of the accused is established with credible evidence.

31.     Furthermore, the accused is known by the witness(es) as a policeman from the company protecting the company asset, and one who usually comes to buy food and betel nut at Ronald’s Canteen. The First state witness said he could easily identify the accused because of his recognition that the accused and him shared betel nut and food together occasionally. The Second State Witness said he could easily identify him because of his recognition by interacting with him couple of time since 2020. Hence, I am convinced with the Prosecution’s evidence. 

Whether ballistic evidence is required and if so, does it cast doubt on the standard of proof? 

32.    Evidence before this Court establishes that there was more than one gun used at the material time. However, I find the essence of this issue boils down to the person who actually entered into the yard, and walked further into the kitchen area, and fired the third gun shot. There is no other evidence from Defence supporting that there were other armed policemen inside the property, except the accused. 

33.     This is where logic and common-sense principles enunciated by His Honor Justice Kandakasi (as he then was) in the case of State v. Cosmos Kutau Kitawal (2002) N2245, is applicable, whether to accept or reject the evidence of the Defence.  

34.     None of the state witnesses stated that the gun used in the shooting of the deceased was K141, however they were affirmative in their description as a weapon, long and black. The state witnesses are all mere civilians with no knowledge on the specifics of the weapon used, as to provide a detailed description. In this case, the accused was identified in reasonable lighting and proximity. I infer that there is no need to conduct a ballistic test on the weapon used, as the gun was not specifically identified as K135. It is utterly established by evidence adduced before this court, that the accused did go to the back of the house armed with a long black weapon, followed by the third gun shot, which was evidently executed by him. The accused’s asserting that he did not fire the shot, nor was he the only policeman at the back of the house, are all uncorroborated evidence, as there is no further correlating evidence to add weight, this only renders the ballistic test unnecessary, rather a plot to evade criminal liability.

35.     Based on the above, I am content that the Defence’s proposition on a need for ballistic test to prove its case does not hold water.

DECISION SUMMARY

36.      I am satisfied with the State’s submission. Assessment on the evidence goes to prove State’s case.

37.     I conclusively answer the following questions to further establish my position on this matter.

38.     Were the evidences identifying the accused of good quality?

•	Answer: YES

39.     Whether logic and common sense applicable in these circumstances, if so which party does it favor, accused or deceased?

•	YES; favoring the State.

40.     Which party’s version of the evidence is reliable and credible?

•	Answers to above questions warrant that the State’s version of the evidence is reliable.

41.     Whether ballistic evidences were required and if so, does it cast doubt on the standard of proof?

•	No. It is not necessary in this circumstance, as there was no specification on the gun used by the accused by the witnesses, as to compare the accused’s description of the gun against the evidence of the state witnesses. 

42.    Who killed the deceased?

•	The Accused 
 
43.     Accordingly, I find that the accused is guilty of murder.

44.    The Formal Orders are:

1.	The accused is found guilty of murder.
2.	The accused be remanded in custody awaiting sentencing.
_____________________________________________________________
Public Prosecutor: Lawyers for the State
JPJ Lawyers: Lawyers for the Accused